Lovely Thomas vs Tomy Alexander on 5 January, 1999

    Lovely Thomas vs Tomy Alexander on 5/1/1999

JUDGMENT

   P.V. Narayanan Nambiar, J.

   1. The Original Petition is filed under Sections 10 and 18 of the Indian
Divorce Act with the following allegations :

   2. The petitioner and the respondent are Christians and their marriage was
solemnised on 15.8.1982 in accordance with the custom of the community. Though
initially the petitioner and her parents were not interested in the marriage
proposal, the marriage was solemnised due to the insistance of the respondent.
At the time of marriage, the respondent was employed in U.A.E. After the
marriage, they lived together at the residence of the petitioner for four days.
During the first night, the respondent pretended to be ill. She saw him taking
medicines from the next day onwards. She was told that the respondent was
suffering from jaundice for which he was taking some Ayurvedic medicines and so
she was to keep herself away from him. Thus the marriage could not be
consummated. The respondent left for U.A.E. promising that he would secure a job
for the petitioner at the earliest so that she could join him. He returned to
India after about 11/2 years in February, 1984. Then they stayed together for 28
days, but he abstained from having sexual intercourse with the petitioner. When
confronted, he told her that he had problem in achieving erection and that he
was undergoing treatment for the same. Though the petitioner took initiative to
consummate the marriage, it was not possible due to the impotency of the
respondent. The respondent then returned to U.A.E. On 17.4.1985, he met with an
accident and became totally immobile. He was brought to India in July, 1985 and
was admitted in Medical College Hospital, Trivandrum. Thereafter he was removed
to St. Philomina's Hospital, Bangalore. Even now he is continuing Ayurvedic
treatment.

   3. While so, the petitioner completed Beautician Course and started a Beauty
Parlour at Kaduthuruthy. The respondent used to take all the income received
from the Beauty Parlour. With the financial assistance of the petitioner's
father, she purchased 7 cents of land with a residential building therein at
Thalayolaparambu. The document was registered in the name of the respondent due
to his insistence.

   4. The respondent developed a mania of suspicion towards the petitioner. He
started misbehaving towards her and also physically assaulted her on several
occasions even in the presence of her customers. While they were living at
Thalayolaparambu, the respondent started a grocery business. In order to
commence the business, the respondent wanted to sell the gold ornaments of the
petitioner which she resited whereupon the respondent got wild, physically
tortured her and forcefully took away the gold ornaments and sold the same much
against the petitioner's protests. He also raised money by depositing the title
deeds of the property in the Bank. As the amount due to the Bank not be repaid,
the Bank issued notice to the respondent calling upon him to repay the amount.
When the petitioner enquired about the loan, the respondent brutally assaulted
her and threatened to kill her by holding a knife against her throat. She was
threatened to vacate the house and being unable to withstand the threat and
torture, the petitioner left the house on 15.4.1992 and started residing with
her parents.

   5. Even after the separation, the respondent often came to the Beauty Parlour
and created trouble. He assaulted her in front of the customers. She was thus
compelled to close down the Beauty Parlour by the end of May, 1992 and
thereafter she took up employment as Assistant Accountant in a Pharmaceutical
firm. Since May, 1992 the parties have no contact with each other. The
petitioner was driven out of the matrimonial home. The respondent had not cared
to look after her. She was deserted since 15.4.1992. The marriage was solemnised
by concealing the fact that the respondent was impotent. Consent of the
petitioner to the marriage was obtained by suppressing the impotency of the
respondent. The respondent continues to be impotent and hence, the petitioner
submits that she is entitled to a decree of nullity of the marriage or in the
alternative to the decree of divorce.

   6. The respondent filed a counter affidavit opposing the application in which
he denied the averments contained in paragraphs 1, 2 and 3 of the Original
Petition. According to him, the marriage was consummated. The petitioner and the
respondent had a very satisfactory sexual life and at one stage, she had even
conceived. They had sexual intercourse even before the marriage. He denied the
averment that he had no erection. It is his case that he did not state that he
was suffering from jaundice on the next day of the marriage. He was never
impotent and he is capable of sexual intercourse and can satisfy any woman
sexually even now. His entire savings were given to the petitioner and her
patents. But when he was brought home after the accident, the petitioner and her
parents started showing a cold face to him. According to him, the Beauty Parlour
was started with his earnings. Even the property was purchased with his money.
The respondent also denied the averment that the income from the Beauty Parlour
was appropriated by him. The gold ornaments have not been sold by him as
alleged. He has not physically assaulted the petitioner or tortured her and he
never threatened to kill her. The allegation of desertion is also denied by him.
According to him, it is the petitioner who deserted him. No fraud was played on
the petitioner and her parents. There was no concealment of any vital fact. The
petitioner is not entitled to get a decree of nullity of the marriage or a
decree of divorce. He prays for dismissal of the Original Petition.

   7. The evidence in the case consists of the oral evidence of P. Ws. 1 to 7
and R.W. 1. Exts. A1 to A5 and X1 and X2 were produced and marked.

   8. The prayer in the Original Petition is to declare the marriage between the
petitioner and the respondent null and void on the ground that the respondent
was impotent at the time of marriage and at the time of institution of the suit.
There is further prayer for declaration of the marriage as null and void on the
ground of fraud as consent of the petitioner was obtained by suppressing the
impotency of the respondent. Alternatively the petitioner prays for dissolution
of the marriage on the ground of desertion and cruelty. But during the course of
hearing, Counsel for the petitioner fairly submitted that the petitioner is not
entitled to a relief of nullity of marriage as impotency of the respondent is
not proved. So, I am not dealing with the evidence regarding impotency and I
confine myself to the decision of cruelty and desertion.

   9. The petitioner was examined as P.W. 1. In the course of her evidence, she
stated that as she was not prepared to give her gold ornaments to the
respondent, he assaulted her and forcefully took the ornaments and sold them.
She also deposed that the Bank issued notice to the respondent calling upon him
to repay the amount and when enquired about the loan, the respondent manhandled
her and attempted to kill her with a knife. She somehow managed to escape and
spent the whole night in a closed room. She further deposed that she left the
house on 15.4.1992 when it was no longer possible for her to continue her stay
with the respondent. Other instances of cruelty have also been spoken to by her.
According to her, the respondent came to the Beauty Parlour run by her and on
more than one occasion manhandled her and abused her in filthy language in the
presence of her customers. She gave evidence that she has no contact with the
respondent for the last six years and that he never cared to enquire about her
whereabouts or well being.

   10. P.W. 2 is the father of the petitioner. He stated in the course of his
examination that his daughter returned to his house and complained of ill-
treatment on the part of the respondent. He also stated that the respondent was
cruel to the petitioner and used to manhandle her. P. W. 3 is the sister of the
petitioner who stated that occasionally she used to stay with the petitioner.
She gave evidence regarding the cruelty of the respondent. She stated that in a
particular day the respondent manhandled the petitioner from the Beauty Parlour
in the presence of her customers and even threatened to kill her. P.W. 6 is the
mother of the petitioner who spoke about what was reported to her by the
petitioner. The maternal uncle of the petitioner was examined as P.W. 7.

   11. The respondent was examined as P.W. 1. He has denied the entire
allegations of cruelty and ill-treatment. In the course of his evidence, he
admitted that he and the petitioner stayed together till 7.2.1993 when she left
him and went to her house.

   12. The evidence of P.W. 1 which I am inclined to believe shows that the
respondent had been ill-treating her. Her evidence also shows that she was
deserted by the respondent. It has come out in evidence that the respondent
manhandled the petitioner when she refused to part with her gold ornaments. Her
evidence also shows that she was ill-treated by the respondent when she raised
objection regarding deposit of title deeds of the property in the Bank in order
to obtain loan. She further deposed that they have been living separately ever
since 15.4.1992. Her evidence further shows that the respondent used to go to
the Beauty Parlour and abuse her in filthy language in the presence of her
customers and even manhandle her. The parties have no contact with each other
for the last six years. Her evidence to an extent is supported by the evidence
of P.Ws. 2 and 3 who are her father and sister respectively. Ordinarily in the
absence of compelling reasons, an Indian wife with a village background will not
raise false allegations of cruelty and desertion against her husband. Of course,
there are exceptions. But on a reading of the evidence of P.W. 1, I am inclined
to hold that the petitioner will not come under the category of exceptions.
There is nothing to discard her evidence. She will not live separately from her
husband for the last six years without sufficient reason. Sufficient reason,
according to her, is the cruelty of her husband/respondent. Though the
respondent has denied the acts of cruelty alleged against him, I am inclined to
choose the evidence of the petitioner as against the respondent due to its
intrinsic worth.

   13. It is admitted by the parties that they are residing separately for the
last six years. Though the petitioner would say that they have been living
separately since April, 1992, it is the case of the respondent that it is only
from 7.2.1993 that they have started residing separately. According to the
petitioner, she was compelled to leave her matrimonial home due to the alleged
cruelty of the respondent. It is not the case of the respondent that even after
she left, he was been looking after her or enquiring about her well being or
whereabouts. So, the question to be decided is whether the petitioner is
entitled to get a decree of divorce on the ground of desertion.

   14. 'Desertion' is defined under Section 3(9) of the Indian Divorce Act which
implies abandonment against the wish of the person charging it. Since it was the
petitioner who left the matrimonial home and started residing separately, will
it amount to desertion on the part of the respondent, is the question to be
considered. On an appreciation of the judicial pronouncements on the subject,
one can very well come to the conclusion that it is a case of constructive
desertion. In the decision reported in Jyotish Chandra v. Meera Guha, AIR 1970
Calcutta 266, it is held that if one spouse is forced by the conduct of other to
leave home, it may be that the spouse responsible for the driving out is guilty
of desertion which means constructive desertion. This decision is basing on the
decision of the Supreme Court reported in Bipinchandra Jaisinghbai Shah v.
Prabhavati, AIR 1957 SC 176, in which it is held that where the wife is forcibly
turned out of her marital home by the husband, the husband is guilty of
constructive desertion. The test is not who left the matrimonial home first. If
one spouse by his words and conduct compels the other spouse to leave the
marital home, the former would be guilty of desertion, though it is the latter
who has physically separated from the other and has been made to leave the
marital home.

   15. In the decision reported in Reynold Rajamani v. Union of India, (1982) 2
SCC 474, it has been held by the Supreme Court that ground for divorce may be
liberally construed. Such a view is also seen taken in the decision reported in
Dastane v. Dastane, (1975) 2 SCC 326, in which it is held that a decision in
matrimonial cases should be taken on preponderance of probabilities and strict
proof as in criminal cases is not necessary.

   16. Going by the standard set up by the Supreme Court, I am convinced that it
is a case where it is the respondent who deserted the petitioner and the case
will come under the category of 'constructive desertion' as the petitioner was
compelled to leave her marital home when it had become impossible for her to
continue her residence with the respondent. The parties have no contact with
each other for the last six years. The intention of the respondent is also tell
tale as he did not enquire about the whereabouts or well being of the petitioner
since 1992, though the Original Petition was filed only on 10.6.1997. From all
these circumstances, it is clear that the petitioner is entitled to get a decree
of divorce on the ground of desertion as well.

   17. In view of what is stated, the Original Petition is partly allowed. The
prayer for decree of nullity is refused. The marriage between the petitioner and
the respondent is dissolved. A decree nisi is passed to that effect.